EPA sends GHG NSPS rules to OMB

On Tuesday, Nov. 4, EPA sent its proposed GHG rule for power plants to the Office of Management and Budget. Not a widely reported story, perhaps because the internet was too busy misquoting EPA Administrator Jackson, who was speaking at Berkeley Law at the time. Or perhaps because we do not actually get the proposed regulations until OMB gives its approval. Cleantechnica and the LA Times have some background info.

The rule, “Greenhouse Gas New Source Performance Standard for Electric Generating Units,” would require new and modified power plants to, well, do something to limit carbon emissions. Units that fall under the NSPS rule would be required to keep their emissions below a set standard, as established by the rule. According to EPA’s website, they plan to publish the proposed rule in January 2012. As CleanTechnica points out, EPA was supposed to propose this rule by July 2011.

Fox News helpfully tells us that, with this new rule, EPA is doing “another end-run around a Congress that has balked at passing cap-and-trade legislation or other remedies to curb greenhouse gases.” I agree: Congress really needs to come up with a substantive remedy to curb greenhouse gases. That is what Fox News meant, right? In the meantime, EPA is the only (national) game in town.

Shameless plug: If you want more details on this rule, you can read my draft article on SSRN: http://ssrn.com/abstract=1879513. Get it quick, as I may be forced to revise my article if EPA ever actually releases this rule.

Reader Comments

Rhead, to what extent would these regulations be at risk if the DC Circuit strikes down the tailoring rule? Could EPA say that they are regulating ALL power plants and thus this regulation does not depend upon the tailoring rule?

Section 111 allows EPA a lot of discretion in how it defines the categories of sources for setting new source performance standards. So, Jonathan, you are probably right that EPA could argue that they do not need the tailoring rule for this particular regulation. The tailoring rule allows EPA to put off regulating smaller sources of GHG emissions indefinitely (although EPA has claimed that it may eventually transition into regulating at least some smaller sources, and that the tailoring rule is more of a stop-gap measure). But just using its discretion under section 111, it is conceivable that EPA could define categories of sources in a way that lumps large power plants in one category and small generators in another. A court would likely give EPA a lot of discretion on when to regulate each category, thus allowing EPA to put off regulating the smaller sources for some time (but maybe not indefinitely).

Having not seen the regulation, I can only speculate that it does not depend on the tailoring rule. And striking the tailoring rule requires EPA to do more regulation (regulate smaller GHG sources); it should not necessarily have any impact on EPA’s existing regulation. So I doubt the tailoring rule litigation has any direct impact on this rule.

Rhead, to what extent would these regulations be at risk if the DC Circuit strikes down the tailoring rule? Could EPA say that they are regulating ALL power plants and thus this regulation does not depend upon the tailoring rule?

Section 111 allows EPA a lot of discretion in how it defines the categories of sources for setting new source performance standards. So, Jonathan, you are probably right that EPA could argue that they do not need the tailoring rule for this particular regulation. The tailoring rule allows EPA to put off regulating smaller sources of GHG emissions indefinitely (although EPA has claimed that it may eventually transition into regulating at least some smaller sources, and that the tailoring rule is more of a stop-gap measure). But just using its discretion under section 111, it is conceivable that EPA could define categories of sources in a way that lumps large power plants in one category and small generators in another. A court would likely give EPA a lot of discretion on when to regulate each category, thus allowing EPA to put off regulating the smaller sources for some time (but maybe not indefinitely).

Having not seen the regulation, I can only speculate that it does not depend on the tailoring rule. And striking the tailoring rule requires EPA to do more regulation (regulate smaller GHG sources); it should not necessarily have any impact on EPA’s existing regulation. So I doubt the tailoring rule litigation has any direct impact on this rule.